Filing Details

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549

SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 18)*

 

Empire Resorts, Inc.

(Name of Issuer)

Common Stock, $.01 Par Value Per Share

(Title of Class of Securities)

292052107

(CUSIP Number)

Steven L. Wilner, Esq. Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

December 28, 2017

(Date of Event which Requires Filing of this Statement)

IfthefilingpersonhaspreviouslyfiledastatementonSchedule13GtoreporttheacquisitionthatisthesubjectofthisSchedule

13D,andis filingthis schedule because of§§240.13d-1(e), 240.13d-1(f) or140.13d-1(g),checkthefollowingbox.[ ]

 

Note: Schedulesfiledinpaperformatshallincludeasignedoriginalandfivecopiesoftheschedule,includingallexhibits. See

§240.13d-7for other parties towhomcopies are tobe sent.

 

*Theremainderofthiscoverpageshallbefilledoutforareportingperson’sinitialfilingonthis formwithrespecttothesubject class ofsecurities,andforany subsequent amendmentcontaining informationwhichwouldalterthe disclosures providedin a priorcover page.

 

Theinformationrequiredintheremainderofthiscoverpageshallnotbedeemedtobe“filed”forthepurposeofSection18of the Securities ExchangeActof1934 (“Act”) or otherwise subjecttothe liabilities ofthatsectionofthe Act butshall be subjectto all otherprovisionsofthe Act(however,see the Notes).

This Amendment No. 18 (this “Amendment No. 18”) amends and supplements the Schedule 13D filed by Kien Huat Realty III Limited (“Kien Huat”) and Lim Kok Thay (“Mr. Lim” and, together with Kien Huat, the “Reporting Persons”) with the Securities and Exchange Commission on August 27, 2009, as previously amended (the “Schedule 13D”), relating to the common stock, par value $.01 per share (the “Common Stock”) of Empire Resorts, Inc. (the “Issuer”). All capitalized terms used in this Amendment No. 18 and not otherwise defined herein have the meanings ascribed to such terms in the Schedule 13D.

Items 3, 4, 5 and 6 are hereby amended and supplemented to add the following:

Item 3. Source and Amount of Funds or Other Consideration

The disclosure set forth under Item 4 of this Amendment No. 18 is incorporated herein by reference.

Item 4. Purpose of Transaction

As previously reported, on December 28, 2017 (the “Closing Date”), Empire Resorts, Inc. (“Issuer”), Montreign Holding Company, LLC, the Issuer’s wholly-owned subsidiary (“Montreign Holding”), and Kien Huat Realty III Limited (“Kien Huat”) entered into a Note Exchange Agreement (the “Kien Huat Note Exchange Agreement”). The Kien Huat Note Exchange Agreement provides for the issuance of 1,379,873 shares of Issuer common stock (the “Exchange Shares”) to Kien Huat in full satisfaction of a promissory note (the “KH Note”), dated January 24, 2017, issued by Montreign Holding to Kien Huat (such exchange, the “Note Exchange”). As of the Closing Date, total indebtedness outstanding under the KH Note was $36,166,465.27, which amount was exchanged for the Exchange Shares at an exchange rate of $26.21, which exchange rate represents the volume-weighted average price of the Issuer’s common stock for the 30-day period immediately preceding the Closing Date. In connection with the Note Exchange, the Issuer was released from all of its obligations pursuant to the loan documents related to the KH Note, including the termination of the Issuer’s pledge of its membership interests in Montreign Holding.

Additional Agreements with Kien Huat

In connection with the Note Exchange, on the Closing Date, the Issuer and Kien Huat amended the terms of certain existing obligations of Kien Huat, as follows:

•               The Issuer and Kien Huat amended (the “Commitment Letter Amendment”) that certain commitment letter dated June 26, 2014, (as amended on January 2, 2015 and September 22, 2015, the “Commitment Letter”). The Commitment Letter, among other things, had committed Kien Huat to make certain equity investments to support the Issuer’s development of Resorts World Catskills and related development projects in Sullivan County, New York. Pursuant to the Commitment Letter Amendment, Kien Huat’s obligation to participate in, and backstop, a follow-on rights offering of up to $35 million on the same terms and conditions and at the same subscription price as the rights offering conducted by the Issuer in January 2016 was terminated. Other than the termination of such follow-on standby purchase commitment, all other terms of the Commitment Letter remain unchanged.

•               The Issuer and Kien Huat amended that certain letter agreement, dated February 17, 2016 (the “Kien Huat Letter Agreement”) to extend by one year Kien Huat’s obligation not to engage in a going-private transaction with Empire without the prior approval of the majority of Empire’s minority shareholders and a majority of the disinterested directors of Empire (the “Amendment to Kien Huat Letter Agreement”). As a result of the Amendment to Kien Huat Letter Agreement, such restriction now covers a period ending on or about February 2020. Other than this one-year extension, all other terms of the Kien Huat Letter Agreement remain unchanged.

 

These summary descriptions of the Kien Huat Note Exchange Agreement, the Commitment Letter Amendment and the Amendment to Kien Huat Letter Agreement are qualified in their entirety by reference to the actual Kien Huat Note Exchange Agreement, Commitment Letter Amendment and Amendment to Kien Huat Letter Agreement, which are filed as Exhibits 10, 11 and 12 hereto, respectively, and are incorporated herein by reference.

Item 5. Interest in Securities of the Issuer

The disclosure set forth under Item 4 of this Amendment No. 18 is incorporated herein by reference.

(a-b) As of the date hereof, the Reporting Persons may be deemed to share beneficial ownership of 28,912,940 shares of Common Stock, representing approximately 88.8% of the outstanding Common Stock (calculated on a the basis of a total of 32,557,617 shares of Common Stock believed to be outstanding (based on the 31,177,744 shares of Common Stock reported to be outstanding as of October 31, 2017, by the Issuer in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 plus the 1,379,873 shares newly issued in the Note Exchange)).

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

The disclosure set forth under Item 4 of this Amendment No. 18 is incorporated herein by reference.

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: January 5, 2018

 

Kien Huat Realty III Limited   By: /s/ Gerard Lim Name: Gerard Lim Title: Director
/s/ Lim Kok Thay by Gerard Lim
Lim Kok Thay

 

EXHIBIT INDEX

 

 

 

Exhibit Index		Description
Exhibit 1		Joint Filing Agreement, dated as ofAugust 27, 2009, byand between LimKok Thay and Kien Huat Realty IIILimited.
Exhibit 2		Investment Agreement, dated as ofAugust 19, 2009, byand between Empire Resorts,Inc. and Kien Huat Realty IIILimited (incorporated byreferenceto Exhibit 10.1 to theCurrent Report on Form 8-Kfiled bytheIssueron August 19, 2009).
Exhibit 3		Stockholder VotingAgreement, dated as ofAugust 19, 2009, byand among Empire Resorts, Inc., Kien Huat Realty IIILimited and thestockholders signatory thereto (incorporated byreference to Exhibit 10.3to theCurrent Report onForm 8-K filed bytheIssuer on August19, 2009).
Exhibit 4		Registration Rights Agreement, dated as ofAugust 19, 2009, byand between Empire Resorts, Inc. and Kien Huat Realty IIILimited (incorporated byreference to Exhibit 10.2 to theCurrent Report on Form 8-K filed by theIssuer on August 19, 2009).
Exhibit 5		Custody Agreement, dated as ofAugust 19, 2009, byand between Kien Huat Realty IIILimited and JPMorgan ChaseBank, National Association, as Custodian (incorporated byreference to Exhibit 5to Schedule 13D filed on August 27, 2009).
Exhibit 6		Standby Purchase Agreement dated as ofApril 12, 2013, byand between Empire Resorts, Inc. and Kien Huat Realty IIILtd. (incorporated byreference to Exhibit 6 to Amendment No. 8 to Schedule 13D filed on April 15, 2013).
Exhibit 7		Standby Purchase Agreement dated as ofJanuary 2, 2015, byand between Empire Resorts, Inc. and Kien Huat Realty IIILtd. (incorporated byreference to Exhibit 99.1 to theCurrent Report on Form 8-K filed by theIssuer on January 5, 2015).
Exhibit 8		Standby Purchase Agreement dated as ofDecember 31, 2015, by and between Empire Resorts, Inc. and Kien Huat Realty IIILtd. (incorporated byreference to Exhibit 99.1 to theCurrent Report on Form 8-K filed by theIssuer on January 4, 2016).
Exhibit 9		LetterAgreement dated February 17, 2016, byand betweenEmpire Resorts,Inc. and Kien Huat Realty IIILtd. (incorporated byreferenceto Exhibit 4.1 to theCurrent Report on Form 8-Kfiled bytheIssueron February 18, 2016).
Exhibit 10		Note Exchange Agreement, dated as of December 28, 2017, among Empire Resorts, Inc., Montreign Holding Company, LLC, and Kien Huat Realty III Limited (incorporated by reference to Exhibit 10.4 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
Exhibit 11		Amendment to Commitment Agreement, dated as of December 28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to Exhibit 99.1 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
Exhibit 12		Amendment to Letter Agreement, dated as of December 28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).